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Rexroad v. City of Springfield
State: Illinois
Court: 4th District Appellate
Docket No: 4-01-0674 Rel
Case Date: 06/17/2002

NO. 4-01-0674

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT



MATTHEW REXROAD and HAROLDREXROAD,
                      Plaintiffs-Appellants,
                      v.
THE CITY OF SPRINGFIELD, ILLINOIS, a 
Municipal Corporation; CITY WATER, 
LIGHT AND POWER OF SPRINGFIELD,
ILLINOIS; and THE BOARD OF EDUCATION 
OF SPRINGFIELD SCHOOL DISTRICT NO. 186 
OF SANGAMON COUNTY, ILLINOIS,
                      Defendants-Appellees.
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Appeal from
Circuit Court of
Sangamon County
No. 98L122

Honorable
Patrick W. Kelley,
Judge Presiding.


JUSTICE TURNER delivered the opinion of the court:

In August 1995, plaintiff, Matthew Rexroad, sufferedinjuries when he fell in an excavation area in the Lanphier HighSchool (High School) parking lot. Matthew and his father, HaroldRexroad, brought a negligence action against defendants, the Cityof Springfield (City); City Water, Light, and Power (CWLP); andthe Board of Education of Springfield School District No. 186(Board), to recover damages for Matthew's injuries. The trialcourt struck CWLP from the complaint. The City and the Boardsought summary judgment, asserting they were not liable forMatthew's injuries because (1) the parking lot was recreationalproperty under section 3-106 of the Local Governmental andGovernmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-106(West 1994)) and (2) the excavation area was open and obvious. The trial court granted defendants' summary judgment motion.

Plaintiffs appeal, contending (1) the excavated area inthe High School parking lot was not recreational property and (2)the hole was not open and obvious. We affirm.

I. BACKGROUND

On August 15, 1995, Matthew broke his left ankle whenhe was walking across an excavation area with a sand-filled holein the High School parking lot and fell. During his deposition,Matthew drew a map of the High School complex that indicatedwhere the hole was in relationship to the football field and theschool building. See appendix. During football practices, thegate labeled "b" on the map was locked. A fence surrounded thepractice field, and the hole was outside of that fence.

The hole in question was created by CWLP's removal of afire hydrant. A CWLP employee testified in a deposition thatbarricades and an orange ribbon were placed around the holefollowing the excavation of the fire hydrant. The barricadeswere to remain in place until another City department filled inthe hole and paved the area up to the level of the parking lot. Before the hydrant's removal, students had damaged the hydrantwith their vehicles.

At the time of Matthew's fall, he was working as ahelper for the High School's football team during its preseasonsummer practice sessions. In his deposition, Matthew stated acoach had told him to go to the locker room to get a footballhelmet for a player. The locker room was in the gymnasium by thefootball field, and after retrieving the helmet, Matthew exitedthe doors by the gymnasium. He then headed back to the practicefield and was focusing his attention on the player on the fieldwho needed the helmet when he stepped into the hole and fell. Matthew did not remember any details of his fall but speculatedhe might have slipped on some residual sand on the pavementsurrounding the hole. Matthew described the hole as being eightfeet by eight feet and filled with sand with a four-inch gapbetween the sand and the surrounding blacktop. After his falland while lying in the sand, Matthew noticed barricades lined upagainst a fence behind the hole.

Shirley Laurik testified in her deposition that sheattended all of the High School football practices when her son,Russell Laurik, was a manager for the team. Matthew testifiedShirley always watched the team practice. When Matthew fell,Shirley was sitting in a chair near the hole but did not see himfall. In his deposition, Russell testified he did not have to beon the practice field during football practices and was relaxingon the parking lot when he saw Matthew fall. He further testified he walked through the hole with no difficulties and so hadthe football players.

In March 1998, Matthew and his father filed a complaintsounding in negligence. The complaint alleged the City hadexcavated the parking lot. The complaint also named the Board asa defendant and alleged the Board had knowledge of the excavation. The complaint alleged both defendants left the area in adangerous condition and failed to barricade or cordon off theunrepaired excavation. The complaint listed CWLP as a defendant. However, in September 2000, the trial court granted CWLP's motionto strike it from the complaint because CWLP was an agency of theCity that could not be sued in its own name.

The remaining defendants filed a motion for summaryjudgment, arguing the school parking lot should be consideredrecreational property under section 3-106 of the Act (745 ILCS10/3-106 (West 1994)), thereby immunizing them from ordinarynegligence and barring plaintiffs' claim. The motion furtheralleged the excavation area was open and obvious; thus, defendants owed no duty to plaintiff. The trial court granted defendants' motion, finding theparking lot was recreational propertyunder section 3-106 of the Act. The trial court did not rule onwhether the hole was open and obvious. This appeal followed.

II. ANALYSIS

Plaintiffs assert the trial court erred in grantingdefendants' motion for summary judgment. Summary judgment isappropriate when the pleadings, depositions, admissions, andaffidavits demonstrate no genuine issue of material fact existsand the movant is entitled to judgment as a matter of law. 735ILCS 5/2-1005(c) (West 2000); Boldini v. Owens Corning, 318 Ill.App. 3d 1167, 1169-70, 744 N.E.2d 370, 372 (2001). We reviewgrants of summary judgment de novo, viewing all evidence in thelight most favorable to the nonmovant. Boldini, 318 Ill. App. 3dat 1170, 744 N.E.2d at 372.

The first issue on appeal is whether section 3-106 ofthe Act applies to the parking lot containing the excavationarea, thereby immunizing defendants and barring plaintiffs'claim.

Section 3-102(a) of the Act (745 ILCS 10/3-102(a) (West1994)) imposes a duty on local public entities to exerciseordinary care to maintain public property in a reasonably safecondition. Bubb v. Springfield School District 186, 167 Ill. 2d372, 377, 657 N.E.2d 887, 891 (1995). However, section 3-106 ofthe Act provides such entities with an affirmative defense that,if properly raised and proved by the entity, bars a plaintiff'sright to recovery for ordinary negligence. Bubb, 167 Ill. 2d at378, 657 N.E.2d at 891. Section 3-106 states as follows:

"Neither a local public entity nor apublic employee is liable for an injury wherethe liability is based on the existence of acondition of any public property intended orpermitted to be used for recreational purposes, including but not limited to parks,playgrounds, open areas, buildings[,] orother enclosed recreational facilities, unless such local entity or public employee isguilty of willful and wanton conduct proximately causing such injury." 745 ILCS 10/3-106 (West 1994).

The parties do not dispute that defendants are local publicentities and the excavation area is public property. Additionally, plaintiffs have alleged only negligence, not willful andwanton conduct.

The Supreme Court of Illinois has held section 3-106applies when the public property is intended or permitted to beused for recreational purposes, regardless of the primary purposeof the property. Bubb, 167 Ill. 2d at 384, 657 N.E.2d at 894. In addition, section 3-106 may apply to nonrecreational facilities or structures that increase the usefulness of public property intended or permitted to be used for recreational purposes.Sylvester v. Chicago Park District, 179 Ill. 2d 500, 508, 689N.E.2d 1119, 1124 (1997). The character of the property as awhole determines whether the immunity applies. Sylvester, 179Ill. 2d at 509, 689 N.E.2d at 1124.

In Sylvester, 179 Ill. 2d at 502, 689 N.E.2d at 1121,our supreme court addressed whether section 3-106 immunized theChicago Park District from liability for a plaintiff's injuriessustained when she fell on a walkway of a parking lot servingSoldier Field. The plaintiff was walking to Soldier Field toattend a football game when the fall occurred. Sylvester, 179Ill. 2d at 502, 689 N.E.2d at 1121. The supreme court notedalthough the walkways and parking lots adjacent to Soldier Fieldmay not have been primarily recreational, Soldier Field itselfwas recreational and such facilities increased its usefulness. Sylvester, 179 Ill. 2d at 508, 689 N.E.2d at 1124. The courtexplained the character of the property as a whole determineswhether the section 3-106 immunity applies, and there, theparking lot in which the plaintiff fell was an integral part ofthe Soldier Field recreational facility. Sylvester, 179 Ill. 2dat 509, 689 N.E.2d at 1124.

As noted by the supreme court (Sylvester, 179 Ill. 2dat 510-11, 689 N.E.2d at 1125), numerous appellate court caseshave reached similar conclusions. See, e.g., Annen v. Village ofMcNabb, 192 Ill. App. 3d 711, 713, 548 N.E.2d 1383, 1384 (1990)(plaintiff injured in a rest room located in a park); Lewis v.Jasper County Community Unit School District No. 1, 258 Ill. App.3d 419, 423-24, 629 N.E.2d 1227, 1230 (1994) (plaintiff injuredby falling against a pumphouse located on a school playground); Conoway v. Hanover Park Park District, 277 Ill. App. 3d 896, 900,661 N.E.2d 528, 531 (1996) (plaintiff injured by falling into adrainage ditch in a park); Kirnbauer v. Cook County ForestPreserve District, 215 Ill. App. 3d 1013, 1022-23, 576 N.E.2d168, 175-76 (1991) (plaintiff injured by a cable barricaderestricting entry to forest preserve access road); see also Dinelli v. County of Lake, 294 Ill. App. 3d 876, 882, 691 N.E.2d394, 398 (1998) (plaintiff injured in crosswalk connectingbicycle paths).

In support of their argument, plaintiffs rely on twoFifth District cases (Capps v. Belleville School District No.201, 313 Ill. App. 3d 710, 730 N.E.2d 81 (2000); Batson v.Pinckneyville Elementary School District No. 50, 294 Ill. App. 3d832, 690 N.E.2d 1077 (1998)) and the First District's decision in Adamczyk v. Township High School District 214, 324 Ill. App. 3d920, 755 N.E.2d 30 (2001), all of which attempted to distinguish Sylvester. We findAdamcyzk addressed the most similar factualsituation to the present case, and thus we will focus on thatcase.

In Adamczyk, 324 Ill. App. 3d at 921, 755 N.E.2d at 31,the plaintiff was injured when she fell in a school parking lotas she was leaving her son's park-district-sponsored basketballgame that was held in the school gymnasium. The parking lotprovided access to the gymnasium and the school's front entranceand was used as visitor parking. Adamczyk, 324 Ill. App. 3d at924, 755 N.E.2d at 34. Because the parking lot served the schoolas a whole, the First District determined it must look to theschool as a whole, not merely the gymnasium, in determining thenature of the property. The court then determined the school wasa multipurpose facility permitting both recreational and nonrecreational activities.Adamczyk, 324 Ill. App. 3d at 924, 755N.E.2d at 34.

The Adamcyzk court distinguished Sylvester, findingSylvester did not concern a multipurpose facility because "Soldier Field's overall and regular purpose was purely recreational."Adamczyk, 324 Ill. App. 3d at 925, 755 N.E.2d at 35. The court noted "Solider Field's adjacent parking lots andwalkways served only to benefit Soldier Field and thus increasedthe usefulness of the stadium." Adamczyk, 324 Ill. App. 3d at925, 755 N.E.2d at 35. The First District also distinguished thecases that hold section 3-106 of the Act applies even though thefacilities have both recreational and nonrecreational purposes(see Kayser v. Village of Warren, 303 Ill. App. 3d 198, 203, 707N.E.2d 285, 289 (1999) (public community building); Baggio v.Chicago Park District, 289 Ill. App. 3d 768, 772, 682 N.E.2d 429,432 (1997) (a public harbor); Diamond v. Springfield MetropolitanExposition Auditorium Authority, 44 F.3d 599, 602-04 (7th Cir.1995) (public convention center); Wallace v. Metropolitan Pier &Exposition Authority, 302 Ill. App. 3d 573, 578, 707 N.E.2d 140,144 (1998) (Chicago's Navy Pier)), noting the overall and regularuse of the property in those cases was recreational, not educational. Adamczyk, 324 Ill. App. 3d at 925, 755 N.E.2d at 34-35.

The Adamczyk court further found any use of the schoolas a recreational facility was merely incidental to its regulareducational function. Adamczyk, 324 Ill. App. 3d at 925, 755N.E.2d at 35. Noting the supreme court's statement in Bubb, thatat some point, "'the use of public property for recreation may beso incidental that section 3-106 does not apply'" (Adamczyk, 324Ill. App. 3d at 925, 755 N.E.2d at 34, quoting Bubb, 167 Ill. 2dat 382, 657 N.E.2d at 893), the First District declined toimmunize all public school property and thus held section 3-106immunity did not apply to the school's parking lot (Adamczyk, 324Ill. App. 3d at 926, 755 N.E.2d at 35-36).

Although we agree that all public school property isnot immunized by section 3-106, we disagree with Adamcyzk'sanalysis as to the school's parking lot. The Adamcyzk courttakes a broader view of the term "property as a whole" than thesupreme court. In Sylvester, 179 Ill. 2d 508-09, 689 N.E.2d at1124, the supreme court examined the relationship between therecreational facility, Soldier Field, and the adjacent walkwaysand parking lots that were by themselves nonrecreational. Thesupreme court did not examine whether the parking lots andwalkways adjacent to Soldier Field also served other facilities. In distinguishing Sylvester, the First District stated thewalkways and parking lots adjacent to Soldier Field served onlyto benefit Soldier Field. Adamczyk, 324 Ill. App. 3d at 925, 755N.E.2d at 35. However, Sylvester did not state anything to thateffect, and we question whether the record in Sylvester wouldsupport the First District's conclusion.

Additionally, the First District focused on the "overall and regular use" of the school property, finding that it waseducational and not recreational. Adamczyk, 324 Ill. App. 3d at925, 755 N.E.2d at 34-35. However, the supreme court has rejected the argument that the primary purpose of the property mustbe recreational for the immunity to apply. See Bubb, 167 Ill. 2dat 384, 657 N.E.2d at 894. Adamcyzk's "overall and regular use"are merely different words for "primary purpose." Similarly, wedo not find it was proper to look to the "overall and regularuse" in determining whether the use of the school property forrecreation was so incidental that section 3-106 did not apply.

Further, we conclude distinguishing Sylvester on thebasis that Soldier Field was not a multipurpose facility wasinappropriate in light of the case law treating multipurposefacilities the same as pure recreational facilities under section3-106 of the Act. See Kayser, 303 Ill. App. 3d at 203, 707N.E.2d at 289; Baggio, 289 Ill. App. 3d at 772, 682 N.E.2d at432; Diamond, 44 F.3d at 602-04; Wallace, 302 Ill. App. 3d at578, 707 N.E.2d at 144. Accordingly, we follow the supremecourt's decision in Sylvester.

Here, the football practice field and the locker roomare both recreational facilities. During football practices, thegate closest to the locker room was locked, and the participantsin the football practice had to walk on the parking lot to gainaccess to the football field from the locker room. Matthew waswalking on the parking lot to gain access to the football fieldwhen he fell. Further, Russell testified he and the footballplayers had walked through the parking lot on the day in question. Looking at the property as a whole, the parking lot isintegral to the football recreational facility because it connects the locker room and the football practice field. Accordingly, the parking lot increases the usefulness of the footballpractice field that is permitted to be used for recreationalpurposes, and thus section 3-106 applies.

Additionally, evidence indicates the parking lotwasused for recreational purposes. The deposition testimony ofseveral witnesses indicated that Shirley, a spectator, sat in theparking lot during all football practices. Spectators of sportsare engaged in recreation. See Diamond, 44 F.3d at 603. Moreover, Russell, a football manager, was in the parking lot whenMatthew fell. Russell testified he did not have to be on thefootball field during practices. While evidence is present thatstudents parked in the lot to attend school, such nonrecreationalactivity does not defeat immunization under section 3-106 of theAct. See Kayser, 303 Ill. App. 3d at 203, 707 N.E.2d at 289; Baggio, 289 Ill. App. 3d at 772, 682 N.E.2d at 432;Diamond, 44F.3d at 602-04; Wallace, 302 Ill. App. 3d at 578, 707 N.E.2d at144.

Accordingly, section 3-106 of the Act immunizes defendants from liability for Matthew's injuries, and summary judgmentwas appropriate.

In light of our resolution of the application ofsection 3-106 of the Act, we need not address whether the holewas open and obvious.

III. CONCLUSION

For the forgoing reasons, we affirm the trial court'sgrant of summary judgment.

Affirmed.

STEIGMANN, J., concurs.

KNECHT, J., dissents.

JUSTICE KNECHT, dissenting:

I respectfully dissent. I believe the thoughtfulanalysis in Adamczyk v. Township High School District 214, 324Ill. App. 3d 920, 755 N.E.2d 30 (2001), is persuasive and not atodds with Sylvester and Bubb. Adamczyk is factually consistentwith this case. Not all public school property is immunized bysection 3-106. A school parking lot is not recreational propertysimply because a student worker who is assisting the footballteam walks across it or a spectator sits in the lot to watchfootball practice. I would reverse.

 

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